State v. Latham

275 S.C. 550 (1981)

273 S.E.2d 772

The STATE, Respondent, v. James Robert LATHAM, Appellant.

21364

Supreme Court of South Carolina.

January 7, 1981.

Charles H. Chiles, Rock Hill, and Mike S. Jolly, Union, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Kay G. Crowe, Columbia, and Sol. William L. Ferguson, York, for respondent.

January 7, 1981.

NESS, Justice:

Appellant James Robert Latham was found guilty of possession of marijuana with intent to distribute, possession of *551 cocaine with intent to distribute, and possession of quaaludes. We reverse.

Appellant first asserts the trial court erred in admitting into evidence the affidavit attached to the search warrant. We agree.

In State v. Smith, 230 S.C. 164, 94 S.E. (2d) 886 (1956), we held affidavits are inadmissible in a criminal case.

The trial court erred in admitting the search warrant and accompanying affidavit into evidence as the allegations contained in the affidavit were hearsay which deprived appellant of his rights of confrontation and cross-examination. State v. McCoy, S.C. 261 S.E. (2d) 159 (1979). The effect of admitting this evidence was to allow the State to bolster its case through the use of obviously incompetent evidence. Although hearsay testimony is admissible at a preliminary hearing, State v. Blue, 264 S.C. 468, 215 S.E. (2d) 905 (1975); before a grand jury to determine a true bill, State v. Williams, 263 S.C. 290, 210 S.E. (2d) 298 (1974); and to obtain a warrant. State v. Sullivan, 267 S.C. 610, 230 S.E. (2d) 621 (1976) an affidavit is not admissible in a criminal trial.

The State argues appellant invited this error, by failing to accede to the admission of the face of the warrant, and should not be allowed to profit by it on appeal. See State v. Gilbert, 273 S.C. 690, 258 S.E. (2d) 890 (1979). We disagree. The trial court admitted the warrant and affidavit over appellant's strenuous objection. Later, the State requested appellant's consent to admit only the face of the warrant. Appellant relying on his original objection made no further argument. We conclude appellant did not invite this error.

*552 Under these circumstances we hold the erroneous admission of the affidavit resulted in reversible error. A new trial must be granted.

Reversed and remanded.

LEWIS, C.J., and LITTLEJOHN, GREGORY and HARWELL, JJ., concur.